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Texas Supreme Court Hands Down its First Rulings on the State’s Anti-SLAPP Statute

- By Laura Lee Prather, Partner, Haynes and Boone, LLP

In 2011, Texas joined the growing list of states to pass an anti-SLAPP statute, the Texas Citizens' Participation Act ("TCPA"). On April 24, 2015, in its first two rulings interpreting the statute, the Texas Supreme Court held that the statute broadly applies to all communications about matters of public concern, even those made outside of a public forum, and also interpreted the evidentiary standard required for a plaintiff to defeat an anti-SLAPP motion to dismiss.

In Lippincott v. Whisenhunt, No. 13-0926, __S.W.3d__, __(Tex. 2015)(per curiam), the Court held that the statute applies to both public and private communications about matters of public concern. In that case, Whisenhunt, a nurse anesthetist, sued Lippincott and Parks, administrators at a surgery center that had contracted with Whisenhunt, for tortious interference, conspiracy and defamation, after Lippincott sent emails questioning health care services Whisenhunt provided. Lippincott and Parks filed an anti-SLAPP motion to dismiss, which the trial court granted as to the tortious interference and conspiracy claims but denied as to the defamation claim. The Sixth Court of Appeals in Texarkana reversed the dismissal of the tortious interference and conspiracy claims on the grounds that the statute did not apply to private communications made outside a public setting.

In its per curiam decision, the Supreme Court looked at the statutory definitions and found no basis for the Court of Appeals' limited view of the TCPA's applicability. The TCPA defines the "exercise of free speech rights" as "a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code sec. 27.001(3). The Supreme Court concluded that the statute "defines 'communication' to include any form or medium, including oral, visual, written, audiovisual, or electronic media—regardless of whether the communication takes a public or private form. The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect." Lippincott v. Whisenhunt, Slip op. 3. Further, because the email communications discussed the provision of medical services by a health care professional, there was no debate as to whether this was a discussion of a matter of public concern. See also, Tex. Civ. Prac. & Rem. Code sec. 27.001(7)(definition of "matter of public concern"). Finally, the Court noted that the Legislature had directed the courts to construe the Act "liberally to effectuate its purpose and intent fully." Tex. Civ. Prac. & Rem. Code sec. 27.011. See here for the decision.

On the same day, the Supreme Court interpreted the evidentiary burden a plaintiff must meet to defeat an anti-SLAPP motion to dismiss. That case, In re Steven Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. 2015), arose out of a dispute between a landowner (Lipsky) and a drilling company (Range Resources Corp.) in which Steven Lipsky and his wife Shyla sued Range for contamination of their well-water, and Range counter-sued Lipsky, his wife, and environmental consultant Alisa Rich for defamation per se, business disparagement and conspiracy to defame. The Lipskys and Rich filed anti-SLAPP motions to dismiss, all of which the trial court denied. After declining to hear an interlocutory appeal directly, based on a since-amended provision of the TCPA, the Second Court of Appeals at Fort Worth allowed a challenge to the denial as an original proceeding mandamus and dismissed all claims against Shyla Lipsky and Alisa Rich and all civil conspiracy claims, but allowed Range's defamation per se and business disparagement claims to proceed against Steven Lipsky. The Supreme Court agreed that the claims against Rich and Shyla Lipsky and all conspiracy claims should be dismissed, but denied Steven Lipsky's mandamus as to Range's remaining claims.

The TCPA requires dismissal of a claim when the statute applies unless the respondent can prove by "clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code sec. 27.005(c). The Supreme Court analyzed the "clear and specific evidence" standard and whether Range met that standard.

In doing so, the Court held that the "clear and specific" standard does not impose a higher burden of proof than required at trial, nor does it categorically reject circumstantial evidence, but does require more than notice pleadings. One cannot just make general allegations and recite the elements of the claim and expect to survive an anti-SLAPP motion to dismiss. Instead, the evidence presented by the plaintiff "must provide enough detail to show the factual basis for its claim." The plaintiff's evidence must "establish the facts of when, where, and what was said, the defamatory nature of the statements, and how they damage the plaintiff." In re Steven Lipsky, Slip op. 3, 13.

As to Range's business disparagement claim, the Court found an affidavit of Range's Senior Vice President insufficient proof of damages to support that claim, holding that conclusory affidavits do not satisfy the statutory standard, and that "general averments of direct economic losses and lost profits, without more [do not] satisfy the minimum requirements of the TCPA." In re Steven Lipsky, Slip op. 17. However, because Range also alleged a defamation per se claim against Steven Lipsky, for which the Court concluded that "proof of particular damage is not required," Steven Lipsky's mandamus petition was denied. See here for the decision.

For more information contact Laura Lee Prather at or 512.867.8476 and Tom Williams at or 817.347.6625.

(Originally posted in the Haynes & Boone Media and Entertainment Law Newsletter; reposted with permission.)

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